and the Task Force regarding existing regulation often occurred before the agency proposed to revise or rescind any of them. At Finally, because the Task Force solicited outside comments during the period since January 1, 1985 and reviewed regulations of OSHA, FDA, and EPA, it is conceivable that the Task Force received more correspondence than was produced by defendants. this stage of the proceedings, however, the Court cannot discern whether it was defendants' narrow definition of the scope of plaintiff's request that resulted in the location of So few responsive documents. Accordingly, defendants shall be required to conduct another search of all relevant files and identify documents concerning regulations that were or still are under consideration by OSHA, FDA, and EPA. III. CONCLUSION For the reasons expressed above, it is hereby alternative, for summary judgment is denied; it is FURTHER ORDERED that there shall be a status conference on October 10, 1991 at 9:45 a.m., at which time the parties are to 7 propose a joint schedule for complying with this Opinion. IT IS SO ORDERED. September 30, 1991 Jnce Isten, Grea JOYCE HENS GREEN United States Senate COMMITTEE ON GOVERNMENTAL AFFAIRS WASHINGTON, DC 205 10-€250 December 10, 1991 Janes MacRae Acting Administrator and Deputy Administrator Office of Information and Regulatory Affairs Office of Management and Budget 17th St. & Pennsylvania Ave, NW Washington, DC 20503 Dear Mr. MacRae: I'd like to thank you again for appearing before the Committee on November 15th. Your testimony provided us with greater insight into the Council on Competitiveness's role in regulatory review. I wish to follow up with further questions based on your testimony. At one point in the hearing, I asked if you had ever rejected Council "advice" on specific rules under review. You replied "yes" to that question and offered to supply further information for the record (see attached). would like a listing of specific instances where you have rejected Council advice. Such a listing should: identify specific rules and agencies involved; contain copies of written documents and a log of meetings and oral communications between OIRA and the Council, Federal agencies, or other parties on these rules; include a summation of the content of those oral communications; contain the Council's recommended changes to the proposed rules; include OIRA's response to the Council; and, include copies of the final rules. I also asked during the hearing for you to provide the Committee with list of advisories OIRA has received from the Council on specific rules. Such a list should contain a half-dozen examples not covered in the list above. This list should also contain the same information that I asked for in previous paragraph (i.e. copies of written communications, logs and summaries of meetings and oral communications, etc.). James MaCrae 12/10/91 Page 2 I appreciate your time and effort in helping the Committee to determine the true role of OIRA and the Council in regulatory review. Please supply a response to this letter by January 6th. If you or your staff have further questions, please contact David Plocher or Sebastian O'Kelly at 224-4751. This is in response to your December 10, 1991, letter raising questions concerning my statement before your Committee on November 15, 1991, that I had turned down advice from the Council on Competitiveness. I regret that my statement may have created some confusion. This confusion arises from the need to distinguish carefully between what happens at the formal meetings of the Council on Competitiveness, and what happens when I have informal discussions with Competitiveness Council staff. I attempted to make this distinction in the enclosed November 8, 1991, letter that I sent you; I should have made this distinction clearer during my November 15, 1991, testimony. As I wrote to you on November 8, "[t]he Council has never asked OIRA to take specific action with respect to a rule under OIRA's review. When the Council meets to discuss a particular regulatory issue, it operates in the same way as other cabinet councils, e.g., the Domestic Policy Council and the Economic Policy Council. Usually attending a meeting of the Council on Competitiveness are the Vice President, other Council members, the head of the agency responsible for the regulation, other interested agency heads, and senior White House staff or their delegees. Based on this discussion, the head of the regulatory agency then decides upon a course of action." As the Competitiveness Council has never asked OIRA to take specific action with respect to a rule under OIRA's review, I have never had occasion to even consider rejecting such advice. And, as you suggested at the hearing, rejecting such advice "isn't likely to happen. In addition, as I further wrote you on November 8, "I and OIRA staff routinely meet with and talk to Competitiveness Council staff. Such communications occur frequently, on a dayto-day basis, and are part of the usual, ongoing interaction that routinely occurs among staff in the Executive Office of the President. The purpose of these communications is to exchange 2 views, ideas, and options on issues in which Council staff or others in the Executive Office of the President express an interest." In the course of the day-to-day exchange of views, ideas, and options on issues, I am certain that I have suggested an idea to one or another of the Competitiveness Council staff, and that person may have disagreed. Conversely, Competitiveness Council staff have, in the course of informal discussions, offered suggestions with which I have disagreed. I do not recall, however, any situation in which we failed to come to a mutual understanding and agreement. I should point out that I tend to have ongoing, iterative discussions with Council staff, concerning a number of regulatory issues. And, as I said at the hearing, such staff discussions are collegial exchanges, not adversarial proceedings. The interactive exchange of ideas within the Executive Office of the President is a normal part of any discussion of the complex, difficult, wide-reaching regulatory issues that tend to arise. More specifically, your December 10 letter requests a listing of specific instances in which I have rejected advice from the Competitiveness Council, and a list of "advisories" I have received from the Competitiveness Council on specific rules. At the hearing, I stated several times that I could not remember any examples of my rejecting Council advice, but offered to provide you examples of any that occurred to me in thinking about this after the hearing. I have thought about this issue further. As I explained above, I have not received such advice or "advisories" from the Competitiveness Council itself. As I also explained above, I am certain, in the course of informal discussions with Competitiveness Council staff, that there have been differences in views or emphasis, but none that were not resolved amicably. If I can be of any further assistance, please let me know. |